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Unedited excerpt from the introductory chapter of Third World Approaches to International Law: Inclusion, Insurgency, and Innovation (forthcoming Routledge, 2017)

I. Introduction

A. The Context

1- Where is the Third World today? I pose the question for despite the designation’s popularity in the second half of the twentieth century—scholars deployed it as geographic locator, badge of allegiance, or, in later years, slur—the Third World has fallen out of fashion. It survives, sort of, though principally in the thoughts and writings of old school revolutionaries whose anachronism grows more quixotic with each passing reference. The triumph of capitalism and the demise of the Soviet socialist experiment, achievements garlanded in the rise of certain states formerly known as Third World (re-christened as the BRICS bloc), are taken to mean that the Third World is no more. And not a moment too soon! In an era of political correctness, the label is offensive; in an era of neoliberal globalisation, the project is antiquated. The Third World, we must conclude, is best left to historians.

2- And yet, a quick glance at today’s indicators reveals a world marred in and by yesterday’s politics. According to the World Bank, the economies of the European Union and the United States contribute a whopping 47% to global GDP. We contrast the lion’s share with the 22% generated by the BRICS nations, a figure which drops to a paltry 8% when China is excluded. To put these shares in perspective, the populations of the BRICS nations are four times larger than those of Euro-America. GDP necessarily impacts upon expenditures and global welfare spending provides another glaring indication of the inequity that persists between former colonisers and colonies. Angela Merkel’s boasts—ironically to justify European austerity measures—are galling: with only 7% of the world’s population, the EU accounts for 58% of global social protection spending. So crushing is the gap that Germany alone spends more on social welfare than all the BRICS nations combined.

3- Economics are only part of the story. Consider that virtually every war since 1945 has been fought on Asian, African, and South American soil. The Atlantic coalition is involved, of course, though they occupy the skies as bombardiers or the market as manufacturers and distributors. Moreover, notwithstanding spirited First World participation in plenty of sorties across the Third World and the countless deaths these occasioned, frequently in violation of Article 2 of the UN Charter and of the Rome Statute, First World perpetrators possess a charmed form of immunity forever eluding the International Criminal Court’s gaze. The same cannot be said of their Third World counterparts for whom both the standing court and its ad hoc younger siblings have all the time in the world.

4- In the shadow of these and other damning partialities, it is fair to say that neither political correctness nor temporal progress have altered the dynamics that gave birth to the Third World in the first place. The Third World is still here and, contrary to its revolutionaries, remains as youthful as ever. Why the fall from grace then?

5- If suffering and misery were the only distinguishing characteristics of the Third World, its abandonment would be cause for celebration: what emancipatory value could a theory of victimisation possess? At the ideological centre of the Third World is a vision of the future that breaks from European imperialist ambition and a variety of strategies for achieving this humanitarian aim. Peoples and nations that aspired to this vision self-identified as Third World for purposes of uniting their efforts in the struggles against colonial legacies and neo-colonial innovations. In the language of Vijay Prashad, above all else, the Third World was a project designed to achieve an inclusive, democratic, and equitable international order. To account for the many facets of this new order, Third World resistance was equally versatile possessing political, economic, and social ambitions. Since sovereignty was the path from a people to a state, from dependency to autonomy, the Third World would claim and defend their borders with fierce tenacity triggering, over the years, a series of independence wars fought for political emancipation. Nor did it end with domestic sovereignty as the Third World sought political strength through alliances among liberated colonies. Both rightly and wrongly, they believed that ‘cooperation among Eastern nations [would] neutralise or nullify the joint action of the West.’ The Non-Aligned Movement, the Group of 77, OPEC, the Bolivarian Alliance of the Americas, are examples of the many coalitions that formed, some more successfully than others.

6- A key area of cooperation was in the articulation of alternative development programmes. A new international economic order was devised and even implemented. Third World states understood all too well that comparative advantage was more historical than inherent and that the foundation of global economics must be transformed if they were to stand a chance at standing at all. Of course, informing both the political and the economic was the cultural and Third World peoples have tried to revive indigenous languages, to articulate indigenous cosmologies, and to transform indigenous education. With fierce lucidity, Fanon, Freire, and Ngugi among others detailed the challenge that the Third World faced: ‘the night of the gunboat was followed by the morning of the chalk and the blackboard’. Unless mind and spirit were also decolonised, the Third World would remain both subordinate and beholden to their former tormentors.

7- The Third World found itself facing a two-fold threat: a global political economy that regarded scores of usual suspects as disposable and a socio-cultural normativity that sanctioned this depravity. It was the second threat that triggered the involvement of legal scholars and spawned a critical international legal strand known as Third World Approaches to International Law (TWAIL), the topic of this book. Aware that today’s geopolitical divisions were, in many ways, legally manufactured in the past and accepting that it is impossible to reform the international order without addressing its normative and regulatory scaffolding, successive groups of international legal scholars developed a method to aid in the critique and re-imagination of international law.

B. The History

8- To understand the kinship between international law and the Third World, we look first to Colombus’s landing in Hispaniola. Once on Caribbean shores, Colombus was faced with a conundrum. He described the people he encountered as ‘artless and generous with what they have, to such a degree as no one would believe but him who had seen it. Of anything they have, if it be asked for, they never say no, but do rather invite the person to accept it, and show as much lovingness as though they would give their hearts.’ Unsure at first how to reconcile the generosity of the locals with his mission of organised thievery, Colombus’s diary reveals the ease with which he overcame his trepidations: ‘with fifty men they can all be subjugated’. His words proved prophetic: Colombus abducted many of his welcoming hosts, transporting them to Spain they were sold into slavery, at least those who survived the trip. And so were sown the first seeds of the American Holocaust and the Atlantic slave trade.

9- As a dual emissary of the Spanish royal family and the Catholic Church, Colombus acted with both regal and moral assent, the foundation of legal authority. A lack of accountability gave way to impunity and barbarism of such ferocity that entire populations were decimated. With genocide rarely making for polite dinner conversation, at least some Spaniards were perturbed by these developments imploring the Church to intervene. The intervention came from Francisco de Vitoria, a Spanish theologian and legal jurist who set about designing a novel framework of universal legal standards. Little did he realise that he was laying the foundations for an international legal regime that would still be standing half a millennium later. Inspired by rudimentary conceptions of rationality, sovereignty, and human rights, de Vitoria’s jus gentium or law of nations concretised privileges and obligations for sovereign states. In the process, and seemingly his primary objective, de Vitoria also provided legal cover for the dispossession of non-European peoples of their lands and their lives.

10- In a formidable text, Imperialism, Sovereignty, and the Making of International Law, Antony Anghie demystifies international law’s origins and its self-proclaimed virtuosity by revealing the contradictions of the regime’s creation myth: de Vitoria regarded indigenous peoples as rational and feral, colonialism was liberating and repressive, criteria for statehood were objective and contingent, and non-Catholic states were protected by jus gentium so long as they allowed their populations to be converted to Catholicism, their lands to be settled by Spaniards, and their resources to be spirited away. Over the centuries, the story of international law has been retold in much the same manner, producing chapters on the legal legitimacy of slavery, genocide, colonialism, and countless other atrocities, so long as they were carried out against non-European peoples. Cue TWAIL.

11- Movement, theory, and method rolled into one, TWAIL is a lens through which both scholar and student can learn of the intimate relationship between international law and the Third World. TWAIL scholars verify, over and over, the multitude of ways in which the regime of international law has buttressed ‘the imperial expansion that subordinated non-European peoples and societies to European conquest and domination.’ Sympathetic scholars have been hard at work, charting instances of ethno-chauvinism within the international legal regime through both historical and contemporary examples. Their studies provide the foundation of TWAIL and the inspiration for this book.

12- In making their case, TWAIL scholars have steadily chronicled an array of biases in the operation of international law, biases that reinforce predation and subjugation between former colonisers and liberated colonies. Imperial international law, as Sundya Pahuja and Ugo Mattei each qualify it, is furthered through a ‘rationality of rule’. Rather than merely regulate relations between sovereign states, international law secures the universalisation of a specific socio-political order and rationality by codifying it in positive law.

13- Fashioned in the halls of Berlin, London, Paris, Vienna, and Washington, international law is consistently leveraged to consolidate gains the First World achieved during the colonial era. By delineating what is permitted and what is not, international law can also be manipulated to delegitimise demands for reform. For example, Third World calls for peace, bread, and justice or simply for improvements to stratified political participation can be dismissed for falling outside—or running against—the supposed transcendentalism of extant international legality. As it were and as it is, the ruling rationality is presented as above political contestation. New forms, institutions, and laws of the international order repackage and rebrand old power, reinvigorating the empires of yesterday both materially and ideologically.

14- Those familiar with TWAIL will recognise in this text the spirit of Antony Anghie, of Bhupinder Chimni, of James Gathii, and of other such scholars. TWAIL also accords with critical international legal theory more broadly and some will also see here a little Martti Koskenniemi, Susan Marks, and Costas Douzinas. Two threads unite these streams of scholars and provide this book’s starting point: first, the politics of international law cannot be isolated from the laws of international politics and, second, international law is afflicted with a prejudicial dynamic that actively disadvantages the Third World.

15- More than a telescope into the past, TWAIL scholars search for ‘patterns of continuity’, rebuking international law for the support it continues to provide to the exploitation of the Third World. To TWAIL, the Third World is in a bad way in large part because international law plays sidekick to Atlantic imperial ambition.

C. The Project

16- To support my seemingly hyperbolic claim and to facilitate scholarly engagement with Third World aspiration for international law, I provide in the following book what has long been missing from the debate: an in-depth investigation into TWAIL itself. Despite its fifty-year history, not a single sustained analysis of TWAIL exists. We search in vain for an auto-portrait but find instead a smattering of piecemeal scholarship from which a researcher must labour to uncover a cohesive narrative. The following genealogy of TWAIL will fill this lacuna.

17- In the few descriptions of TWAIL’s intellectual trajectory, interlocutors adopt a linear approach, dividing the movement into phases dubbed TWAIL I, II, III, and so forth. A linear representation can be useful in charting progression but it can also be misleading, leaving the impression of strategic evolution when TWAIL’s development has been far more organic. Outside the historical overview of the second chapter, my approach differs from this standard representation. I argue that it is more useful to qualify TWAIL not in terms of its temporal advance but its political ambition, the latter of which requires constant adaptation to political, economic, and socio-cultural changes. Just as some strands of TWAIL are denoted by inclusion in the international legal order, others lean more toward subversion and yet others toward innovation. The thematic framework I have opted for will highlight the varied strategies and aims pursued, verifying that naked opposition plays only a small part in its history.

18- I underscore this point about opposition for a reductive interpretation of TWAIL has resulted in much misunderstanding of the method and of its scholars. Adopting a defensive posture toward TWAIL critiques of international law’s partialities, mainstream scholars frequently accuse TWAIL of nihilism or lack of imagination. They downplay TWAIL’s contribution to legal scholarship, arguing that it is anachronistic and thus incapable of accounting for international law’s underlying and emergent complexities. Disdain for TWAIL is unfortunate but it is also unsurprising: TWAIL represents a pointed rebuff of the wooly consensus that mainstream scholars present. Widespread acknowledgment of international law’s tainted foundation threatens the stability of the structure erected upon it, prompting champions of the structure to run from rather than to confront either international law’s predatory past or its prejudicial tendencies. One aim of this book is thus to reposition the perception mainstream scholars have of TWAIL, helping them overcome their knee-jerk repudiation of it. International law is in a troubled state and the reflexive dismissal of TWAIL undermines our ability to reform its latent structural deficiencies. I argue that TWAIL is a useful way forward for both critical and mainstream scholars alike.

19- We observe in the past half-century international law spread like a prairie fire though one far different in character from what Mao imagined. It is now ubiquitous in the laws of nation-states and international institutions, of agricultural products and intellectual properties, of investment opportunities and fiscal arrangements, ultimately reaching every public policy area imaginable. Nor does it end there. International law’s prevalence can also be charted juridically (the law of the sea), normatively (rights discourse), administratively (the jurisdiction of the ICJ), as well as sociologically (international law as mode of power).

20- Yet, concurrent to its expansion, is a general and intensifying malaise afflicting its core institutions: the World Trade Organisation is on life support, the International Criminal Court bleeds credibility by the day, and the UN is capable of little more than self-preservation. Impotence within the institutions has provoked doubts toward, even contempt for international law’s value with many states turning inward or pursuing unilateral action rather than multilateral collaboration. How do we explain these seemingly antithetical trends? TWAIL provides an answer.

21-  Scholars of international law have long quibbled with the form and authority the regime wields over sovereign states. For decades, debates about international legal validity, legitimacy, and purpose raged across the discipline. Not so for the Third World. Having been on the receiving end of international legal machinations since the days of Colombus, debates in the Third World were of a different nature.

22- Recall Anghie and de Vitoria: a key aim, perhaps the key aim of the original law of nations was to repudiate the humanity of non-European peoples. By legally sanctioning the denial of their humanity, the enslavement of Africans, the genocide of Amerindians, the subversion of Asian sovereignty, and the annexation of Third World lands were regarded as morally legitimate. On the flipside, denial also provoked the emergence of what Frantz Fanon described as a ‘colonial mentality’: a sense of inferiority that manifested among many Third World peoples. Witness, for example, a ragtag mix of revolutionaries and reformists over the years pursue international legal recognition of their humanity and sovereignty. Gripped by self-doubt, the Third World seeks solace in international legal affirmation; a declaration alone would not achieve the validation sought. What makes the exercise all-the-more puzzling is that the recognition is sought from the same people who fabricated their non-humanity to begin with.

23- Arnulf Lorca established that Third World states—before and after they acquired or were granted statehood—drew on international law as conceptualised by colonial powers to corroborate their claims for inclusion. The message was simple: we belong too. They presumed that Third World participation in international institutions would counter the prejudicial dynamic in operation and provoke a renewal of the regime along more equitable lines. To return to international law’s quixotic state, the Third World played a key part in fanning the flames of its expansion.

24- A colonial mentality is, of course, layered Running alongside Third World desire for international legal affirmation was Third World distrust of it. As far back as the revolution of San Domingo (Haiti today), non-Europeans were made aware that colonial powers would not ‘give up [their] loot easily.’ Third World endorsements of international law were increasingly laced with doubt as each step toward inclusion was met with a reminder of their subordination: some states are more equal than others. Coups, assassinations, invasions, embargoes and other forms of overt and covert gunboat diplomacy were provided in response to Third World aspirations, at least when these failed to conform to First World expectations. International law played the part of spectator or accomplice to each new depravity further stoking doubts about the value of inclusion. Bringing down the master’s house is one thing; bringing it down with the master’s tools is quite another. While a wider strategy of insurgency was never streamlined across the Third World, it did erupt in pockets. International law’s response to Third World struggles for emancipation—denial of their legal legitimacy—exacerbated Third World contempt for international law. How do we explain the duality—acquiescence alongside subversion—and what value does it have in resolving international law’s present malaise?

25- In a formidable text, Decolonising International Law, Sundya Pahuja describes the paradox as emblematic of the dual quality of international law: concurrently, it is imperial and anti-imperial. Its ‘dark sides’ including complicity with power, exploitation, and dispossession are undeniable and the source of widespread disappointment. Worse than this, however, is the use of international law to codify and circulate a ruling rationality that reproduces empire physically, by maintaining the authority of old power, and rationally, by defining legality in narrow terms and to the exclusion of Third World aspirations. Through its juridification in positive law, the status quo is placed above political contestation. Martii Koskenniemi has long adopted a similar line of reasoning, declaring the politics of international law to be little more than the politics of definition.

26-  Yet, notwithstanding international law’s imperial hue, TWAIL scholars and Third World peoples in general retain a ‘critical faith’ in its capacity to rise above its macabre character. Admittedly, part of this faith is the product of a false promise: ‘the entire edifice is built upon the promise of eventual equality.’ Since the values have discursive rather than structuring capabilities, there is little consequence for a failure to ever achieve the alleged aim. Nevertheless, faith remains. Equality, justice, and universality are powerful rhetorical devices and international law forever holds these out. Yet again we observe the fusion or confluence of international legality with universal morality, presenting us with a narrative that remains relevant nearly five hundred years after its inauguration.

27- For mainstream scholars, the dual quality of international law is theoretically awkward. The pillars they operate with—sovereign equality, historical legitimacy, and operational neutrality among others—rely on a narrative of universality that is anathema to TWAIL’s claim of structural bias, though perhaps it would be more accurate to say that mainstream scholars require a narrative of universality. Without the discursive and rhetorical power of universality, we are left with an edifice that would crumble before the lightest empirical challenge. When faced with the aforementioned statistics, it is impossible to argue equality or justice with a straight face. Mainstream international legal scholarship thus appears fraudulent, promising a future that the current rationality and structures can and will never deliver, while blatantly refusing to contemplate any ideological or institutional reform.

28- Hence the value in mainstream engagement of TWAIL: not only does TWAIL explain Third World scepticism toward old rules and new proposals alike, but it also creates a sensibility toward structural bias that is mostly absent from mainstream reflections on international law. By merging TWAIL with their own understanding of international law, mainstream scholars will be better positioned to collaborate with their critical counterparts in reimagining both rationality and structures.

29- The timing for the cross-fertilisation I propose is ideal. International law’s malaise has much to do with the Third World and with Third World opposition: as the victims of the partialities and machinations of international law, Third World states are the primary instigators of reform at the WTO, UN, and ICC. A combination of puffed up economic muscle, enhanced legal capacity, and an autonomous mindset has produced a Third World henceforth disinclined to reflexively comply with First World demands or to buckle under First World pressure, at least not without a fight. Time has eroded the colonial mentality.

30- Through TWAIL, the source of Third World opposition is plain, even foreseeable: the risks the demands pose to Third World peoples and their unwillingness to bear them any longer. Much of global political economy remains structured around an agent-subject or centre-periphery relationship between the First and Third World. Just as past international law was designed to support First World imperial ambitions, today’s global regulations exhibit a remarkable ability to preserve the historical imbalance. Under these circumstances, the malaise appears more as Third World rejection of the structural deficiencies that produce patterns of continuity between the world’s colonial past and its neo-colonial present. Enter this book on TWAIL.

31- While the value of TWAIL to the Third World is indisputable, I argue that TWAIL’s utility reaches the entire edifice of international law. Its ability to identify symptoms of Third World disaffection, in diagnosing the causes, and in proposing cures provides it with a unique and enviable position in international legal scholarship. TWAIL can help scholars understand oppositional trends and predict their trajectory, facilitating the conceptualisation of new ways forward ideally before an impasse—or malaise—is reached. Through the application of a TWAIL method, even mainstream scholars can develop and apply the critical sensibility needed to redress the imbalance of power that gave rise to a First and Third World to begin with. First as mindset and next as method, TWAIL is capable of rescuing international law from the disquiet spreading across the regime.

D. The Structure

[…]

E. The Value

51- A sense of disaffection, sometimes defeat is common to many critical movements today and TWAIL is no exception. The near absolute triumph of the neoliberal project, signified most notably by sharp rises in inequality and corruption, have produced a climate of disillusionment and powerlessness across the shantytowns of the world (and now reaches urban centres as well). Social dislocations have, in turn, triggered an even more dangerous psychological dilemma as publics lose faith in a better future. The latter is more dangerous for this loss of faith is fodder for reactionary politics and multiple forms and levels of violence now suffuse the political domain.

52- Witness, for example, the global upsurge in anti-democratic, fascist, and chauvinistic movements. Their leaders, usually charismatic, always divisive, ride into polities and governments on promises of deliverance from the claustrophobia of an endless present. Preference for a technocratic, belligerent, or religious narrative is incidental; what is primordial is the use of xenophobia and discord to pit neighbours against one another. What solution have critical movements offered to the crisis? Either more critique or more of the same. Even leftists political parties champion curbs on immigration, the strengthening of the security apparatus, and the stifling of social democracy, further intensifying an acrimonious climate.

53- TWAIL scholars have long sought to underscore, sometimes gently and other times forcefully, the partiality of international law, both in substance and in application, and always to the benefit of Third Worlders. Their success is unparalleled as each critique re-confirms the stratified nature of international legal agency. They have also proposed alternatives to the predatory practices in operation. Fundamental social change however, at least of the variety pursued by TWAIL scholars, elicits much resistance for it usually involves the redistribution of authority, influence, and, wealth. Stated otherwise, the privileged must surrender the privileges they enjoy, a tall ask for any group and an even taller one for a group that believes that their privilege is deserved, necessary, or pre-ordained.

54- It is high time to upscale TWAIL’s ambition. No longer is it about righting the wrongs the Third World suffers at the hands of the Atlantic coalition but of devising an alternative to the patterns of division and predation on offer. Building upon a Freirian worldview, the vision of the Third World project must be redirected toward redemption for all of humanity from a shared history of European depravity. International law can thus become a tool for global social renewal and TWAIL can help us get there. To return to my introductory question, instead of asking where the Third World is today, this book investigates where the Third World can be tomorrow.